Maryland DNA sample collection can resume temporarily, Roberts says

Yvonne Wenger, The Baltimore Sun

The U.S. Supreme Court has allowed Maryland to resume the collection of DNA samples after arrests for violent crimes, an indication that the justices might decide the issue that has divided lower courts and pitted tough-on-crime state officials against civil liberties activists.

Wednesday's one-sentence order from Chief Justice John G. Roberts Jr. is temporary, intended to give opponents of the law a chance to respond before the court makes a more definitive ruling. The uncertainty about what will happen next had led to confusion in law enforcement circles about whether police should immediately reinstate the practice.

Still, Maryland Attorney General Douglas F. Gansler said Roberts' action is a hopeful sign that the Supreme Court is ready to have the final say on the high-profile matter. Maryland's highest court ruled in April that taking the samples before a suspect is convicted violates their Fourth Amendment rights.

"We are encouraged by Chief Justice Roberts' decision to enter a stay," Gansler said in a statement. He said he hopes the state will be able to resume "identifying perpetrators in some of Maryland's most horrific unsolved cases where DNA was left at the scene of the crime."

At the center of the case is a 2003 rape of a 53-year-old woman in her Salisbury home. Alonzo Jay King Jr. had been sentenced to life in prison for the attack.

Police linked him to the rape using a DNA sample taken from King when he was arrested on unrelated assault charges in 2009. The April decision by Maryland's Court of Appeals reversed King's sentence and sent the case back to Wicomico County Circuit Court for a new trial.

King's attorney is expected to respond to the Supreme Court by next week, at which point Roberts will decide whether to extend the order. King has been represented by the state's Office of the Public Defender.

Stephen B. Mercer, chief attorney for the Public Defender's forensics division, said the office received Roberts' order and is preparing a response. He declined further comment.

Opponents of the practice, including the American Civil Liberties Union, argue that genetic data contains sensitive information that could be abused, such as a person's predisposition to certain diseases. Those who favor the post-arrest DNA collection say that the samples are the equivalent of 21st-century fingerprints.

In a signature crime-fighting initiative for Gov. Martin O'Malley, Maryland first authorized law enforcement in 2009 to take the samples when a person is arrested for a violent crime, burglary or an attempt to commit a violent crime or burglary.

The DNA samples were then entered into a database in an attempt to link the suspects to genetic evidence from other crime scenes. The database has remained in limbo during the court battle.

Ken Klukowski, a professor at Liberty University School of Law and a fellow with the conservative-leaning American Civil Rights Union, said Roberts' action is an indication the court may hear Maryland's case, but he stills sees the prospects as slim.

Klukowski said most cases petitioned to the Supreme Court have virtually zero chance of being heard. The high court hears about 1 percent of the 8,000 cases that are offered to it each year, he said.

"The granting of the stay indicates that it is more likely than it previously was that the Supreme Court would take the case; [the state] went from having very long odds to an uphill climb," Klukowski said.

In the hours after Roberts issued his order, Maryland law enforcement tried to sort out its meaning. It is not clear how long the chief justice may ultimately authorize police to take the DNA samples while the issue remains unsettled.

The superintendent of the Maryland State Police, Col. Marcus Brown, did not respond to questions about plans to resume DNA collection.

"We never stopped fighting crime and we are pleased to have a vital component for fulfilling our mission available to us once again," Brown said in a statement.

O'Malley called Roberts' actions encouraging, but he also didn't say if he wants Maryland law enforcement to immediately resume collecting the samples.

"There is nothing more important to the governor than protecting public safety," O'Malley's spokeswoman Takirra Winfield said. "We applaud the court for recognizing the [value] of the collection of DNA evidence. It has been a major part of our strategy toward fighting violent crime."

Baltimore County State's Attorney Scott D. Shellenberger said it might not make practical sense for law enforcement to resume the collections right away, considering Roberts' one-week deadline. He does intend to continue to prosecute cases the state built based on the post-arrest DNA samples that were collected before the state's high court struck down the practice.

"I think the fact that Justice Roberts issued the stay is a good sign that the Supreme Court is likely to be interested in the case," he said. "Now, we're going to have to sit back and see what the Supreme Court does."